People v. Rubens

Appellate Division of the Supreme Court of New York

People v. Rubens

190 A.D.2d 969, 594 N.Y.S.2d 82, 1993 N.Y. App. Div. LEXIS 1691

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 25, 1993

StatusPublished

Cited by1 cases

This text of 190 A.D.2d 969 (People v. Rubens) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Rubens, 190 A.D.2d 969, 594 N.Y.S.2d 82, 1993 N.Y. App. Div. LEXIS 1691 (N.Y. Ct. App. 1993).

Pincite

Opinion

Mercure, J.

Appeal from a judgment of the County Court of Tompkins County (Barrett, J.), rendered January 3, 1992, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree.

Defendant was convicted upon a jury verdict of criminal sale of a controlled substance in the third degree as the result of his February 22, 1991 sale of cocaine to State Trooper Marie Kirkwood. The arguments raised on appeal lack merit and do not warrant extended discussion. Initially, in view of the fact that defendant raised the defense of agency in his opening statement and cross-examination of prosecution witnesses and indicated his intention to "persist” in his efforts to establish the defense, County Court did not err in permitting the People to offer direct evidence of defendant’s prior drug sales (see, People v Veale, 169 AD2d 939, 941, affd on mem below 78 NY2d 1022). Second, evidence that defendant had a friend, Frank James, who also trafficked in drugs, that defendant was seen with James on the evening of February 22, 1991 (although not at the time of defendant’s sale of cocaine to Kirkwood), and that the sale to Kirkwood took place in James’ car did not give rise to a reasonable inference that defendant was acting as an instrumentality of the buyer, so as to warrant a jury charge on the defense of agency (see, People v Andujas, 79 NY2d 113,117; People v Perry, 159 AD2d 593, lv denied 76 NY2d 794). Finally, Kirkwood’s brief observation of defendant on an occasion subsequent to February 22, 1991 was not an identification within the purview of CPL 710.30 (see, People v Gissendanner, 48 NY2d 543, 551-552; People v Moon, 180 AD2d 652, lv denied 80 NY2d 835; cf., People v Newball, 76 NY2d 587).

[970]*970Mikoll, J. P., Yesawich Jr., Crew III and Harvey, JJ., concur. Ordered that the judgment is affirmed, and matter remitted to the County Court of Tompkins County for further proceedings pursuant to CPL 460.50 (5).

Free access — add to your briefcase to read the full text and ask questions with AI

Mercure, J.

Appeal from a judgment of the County Court of Tompkins County (Barrett, J.), rendered January 3, 1992, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree.

Defendant was convicted upon a jury verdict of criminal sale of a controlled substance in the third degree as the result of his February 22, 1991 sale of cocaine to State Trooper Marie Kirkwood. The arguments raised on appeal lack merit and do not warrant extended discussion. Initially, in view of the fact that defendant raised the defense of agency in his opening statement and cross-examination of prosecution witnesses and indicated his intention to "persist” in his efforts to establish the defense, County Court did not err in permitting the People to offer direct evidence of defendant’s prior drug sales (see, People v Veale, 169 AD2d 939, 941, affd on mem below 78 NY2d 1022). Second, evidence that defendant had a friend, Frank James, who also trafficked in drugs, that defendant was seen with James on the evening of February 22, 1991 (although not at the time of defendant’s sale of cocaine to Kirkwood), and that the sale to Kirkwood took place in James’ car did not give rise to a reasonable inference that defendant was acting as an instrumentality of the buyer, so as to warrant a jury charge on the defense of agency (see, People v Andujas, 79 NY2d 113,117; People v Perry, 159 AD2d 593, lv denied 76 NY2d 794). Finally, Kirkwood’s brief observation of defendant on an occasion subsequent to February 22, 1991 was not an identification within the purview of CPL 710.30 (see, People v Gissendanner, 48 NY2d 543, 551-552; People v Moon, 180 AD2d 652, lv denied 80 NY2d 835; cf., People v Newball, 76 NY2d 587).

[970]*970Mikoll, J. P., Yesawich Jr., Crew III and Harvey, JJ., concur. Ordered that the judgment is affirmed, and matter remitted to the County Court of Tompkins County for further proceedings pursuant to CPL 460.50 (5).

Cite This Page — Counsel Stack

Bluebook (online)

190 A.D.2d 969, 594 N.Y.S.2d 82, 1993 N.Y. App. Div. LEXIS 1691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-rubens-nyappdiv-1993.

Opinion

Related

Cite This Page — Counsel Stack